Complementarity: Contest or Collaboration? - FICHL

The Principle of Complementarity: a Means Towards a More Pragmatic Enforcement
of the Goal Pursued by Universal Jurisdiction?
rum state and the crime, universal jurisdiction requires no such nexus. 52
Instead it finds its basis in the notion that certain jus cogens and other
peremptory norms of international law are so widely and universally endorsed,
and that their violations are so harmful, that they constitute a profound
attack not just on the immediate victims or to the state community
to which victims are related, but on the international community as a
whole. As a result of this offence to the international community, the theory
of universal jurisdiction asserts that all states have a legitimate interest
and are entitled – and even obliged in some circumstances – to bring proceedings
against the perpetrators, even if there is no link between the forum
state and the crime. 53 Universal jurisdiction allows for the trial of
international crimes committed anywhere in the world by and against
anybody. In many respects, it is an unprecedented mechanism empowering
states to prosecute and try alleged perpetrators of core international
crimes.
Traditionally, the ratio legis of universal jurisdiction is justified by
two main ideas. First, as stated, some crimes are so grave that they harm
the entire international community. Second, the gravity of these crimes
implies that no safe haven should be available for those who commit
them. Although these justifications may not always appear realistic, they
clearly explain why the international community or individual states intervene
by bringing proceedings and prosecuting the perpetrators of such
crimes. 54
Here, it is important to recall two points. First, that “to the extent
that a title to prescriptive universal criminal jurisdiction exists under customary
international law, a state that has exercised this title must be presumed
to have the jurisdiction title to adjudicate the matter by way of
52 Roger O‟Keefe, “Universal Jurisdiction: Clarifying the Basic Concept”, see supra
note 3, pp. 745-746 and references cited therein.
53 Xavier Philippe, “The principles of universal jurisdiction and complementarity how
do the two principles intermesh?”, see supra note 49, p. 377.
54 International Court of Justice, Arrest Warrant of 11 April 2000, see supra note 17,
Dissenting opinion of Judge ad hoc Van den Wyngaert, para. 46; Georges Abi-Saab,
“The Proper Role of Universal Jurisdiction”, in Journal of International Criminal
Justice, 2003, vol. 1, no. 3, p. 597; Philip Grant, “Les poursuites nationales et la compétence
universelle”, in Robert Kolb, Droit international pénal, Bruylant/Helbing and
Lichtenhahn, Bruxelles/Bâle, 2008, p. 454; Florian Jessberger, “Universal Jurisdiction”,
see supra note 49, p. 556.
FICHL Publication Series No. 7 (2010) – page 263